Imagine a world where copyright on a piece of software benefits the world even after it expires. A world where eventually all software becomes Free Software.

The purpose of copyright is “To promote the Progress of Science and useful Arts”. The law gives a person the right to profit from their creation for a while, after which everyone gets to profit from it freely. In general, this works for books, music, and other creative works. The current term of copyright is far too long, but at least once the term is up, the whole world gets to read and love Shakespeare or Walter de la Mare equally.

The same is not true of software. In order to be useful, software has to run. Imagine the great commercial software of the past decade: Excel, Photoshop, Pagemaker. Even after copyright expires on Microsoft Excel 95 (in 2090!), nobody will be able to run it! Hardware that can run Windows 95 will not be available, and our only hope of running the software is to emulate the machines and operating systems of a century ago. There will be no opportunity to fix or improve the software.

What should we reasonably require from commercial software producers in exchange for giving them copyright protection?

The code.

In order to get any copyright protection at all, publishers should be required to make the source code available. This can either happen immediately at release, or by putting the code into escrow until copyright expires. This needs to include everything required to build the program and make it run, but since the same copyright rules would apply to operating systems and compilers, it ought to all just work.

The copyright term for software also needs to be rethought. The goal when setting a copyright term should be to balance the competing desires of giving a software author time to make money by selling software, with the natural rights of people to share ideas and use and modify their own tools.

With a term of 14 years, the following software would be leaving copyright protection around now:

Windows 95

Excel 95

Photoshop 6.0

Adobe InDesign 1.0

A short copyright term is an incentive to software developers to constantly improve their software, and make the new versions of their software more valuable than older versions which are entering the public domain. It also opens the possibility for other companies to support old software even after the original author has decided that it isn’t worthwhile.

The European Union is currently holding a public consultation to review their copyright laws, and I’ve encouraged Mozilla to propose source availability and a shorter copyright term for software in our official contribution/proposal to that process. Maybe eventually the U.S. Congress could be persuaded to make such significant changes to copyright law, although recent history and powerful money and lobbyists make that difficult to imagine.

Commercial copyrighted software has done great things, and there will continue to be an important place in the world for it. Instead of treating the four freedoms as ethical absolutes and treating non-Free software as a “social problem”, let’s use copyright law to, after a period of time, make all software Free Software.